Volume 17 — Illinois Reports

<p>This indictment was tried before Baugh, Judge, and a Jury, at December term, 1854, of the Gallatin Circuit Court.</p>

This cause was tried before Baugh, Judge, without the intervention of a jury, at December term, 1854, of the Gallatin Circuit Court. Verdict and judgment for plaintiff in the court below. The defendant below brought the cause to this court and assigned errors.

The opinion of the court furnishes a statement of the case. The decision of the Circuit Court was made by Marshall, Judge, at September term, 1852.

The opinion of the court gives a statement of the case. The plea Avas tried before Baugh, Judge, and a jury, at November term, 1854, of the Gallatin Circuit Court. The jury found for the defendant. The court arvarded him costs, and quashed the Avrit of attachment. The plaintiffs beloAV excepted and assigned errors.

This bill alleges that Glick is owner of north half of northeast quarter of Section 7, T. 1 N., R. 13 W., and Biehl owner of west half of same section; that complainant and defendant agreed upon the half section corner between them, and inserted a stone many years ago, which was acquiesced in until the beginning of 1850, when the county surveyor established that corner five chains further east, whereby Glick’s house and barn, &c., were thrown on the land of Biehl; that Glick…

The declaration in this case embraced three special counts on the contract, and the general counts for work and labor, and qucmtum meruit. The special counts averred that Hawley was to quarry stone for wages, after the rate of eighty cents per yard; that he excavated, grubbed and stripped the earth, preparatory to quarrying, &e., and one of the counts stated the contract at length.

The following statement will exhibit the principal facts involved in this controversy: On the 19th day of February, 1840, John C. Stickney being seized in fee of lots 1111 and 1112, in Shawneetown, mortgaged the same to the Bank of Illinois, to secure debts then due by Stickney to the bank, and advances to be thereafter made by said bank to Stickney, for the purpose of enabling him to finish off a house then in process of construction upon said lots; the whole debt and…

This was an action of ejectment instituted by McClure against Engelhardt for the recovery of the north-west quarter of the south-west quarter, and south-east quarter of north-east quarter of Section 5, in T. 2 N., R. 7 W., in St. Clair county. Plea, general issue. It was tried by the court at April term, 1849. The court found for the defendant and rendered judgment against the plaintiff for costs.

Songer, on the 10th of April, 1855, made application to the county court of Gallatin, to establish a preemption, at appraised value, of the west half of the north-east quarter, and the east half of the north-east quarter of Sec. 11 of T. 85 N., 8 B., being swamp lands, in pursuance of the act of the General Assembly to dispose of the swamp lands, “ approved 22nd June, 1852,” and the act amendatory thereof, approved 4th March, 1854.

This was an action of assumpsit, originally commenced by appellee, before a justice of the peace, to recover from appellant three installments of 'fifteen per cent, each on two shares of stock of $50 each, alleged to have been subscribed by appellant to said company. This cause was taken to Perry Circuit Court by appeal, and tried by the court, Breese, Judge, presiding, at October term, 1855.

This was an action of ejectment, to recover the possession of a certain tract of land situate in St. Clair county. Declaration contains but one count; plaintiff claims an estate in fee in said land. The cause was tried by the court and jury.

This action was tried in the Massac Circuit Court, before Parrish, Judge, and a jury, at June term, 1854; verdict and judgment for the plaintiff below for five hundred dollars and costs.

This cause was heard before Baugh, Judge, and a jury, at September term, 1854. The opinion of the court furnishes all the facts necessary to a full understanding of the case.

This cause was tried before Underwood, Judge, and a jury ■ at October term, 1854, of the Washington Circuit Court. Verdict and judgment for Appellee in the court below.

The appellant was sued as indorser of a promissory note. The declaration alleged'that one Judson made the note, payable to appellant at the banking house of J. J. Anderson; that it was made and indorsed in the State of Missouri; that after the time for payment expired, or the third day of grace, it was presented at Anderson’s for payment; that payment was refused; that the note was protested for non-payment; and that appellant was notified.

This was an action for slander, commenced by Sophia Howe, by her next friend, complaining of Amos Stewart. The words, as proved, were: “ She stole my money; ” “ she stole ninety dollars ; ” “ she is a smart little thief.” It was also in proof that Sophia was but nine years and nine months old.

This suit was instituted before a justice of the peace to recover the value of a mule seized and sold by defendant, as a constable of Massac county, which mule was alleged by plaintiff below, to be exempt by law from levy and sale on execution.

This cause was tried before Denning, Judge, and a jury, at August term, 1858, of the Johnson Circuit Court. The facts of the case will be found in the opinion of the court.

This was a proceeding by quo warranto, commenced by the State’s Attorney, on the relation of Pickering, against Joseph Devin, Elisha Embree, Robert Parkinson, J. N. Jacques, George TV. Brown, Francis B. Thompson, Jonas Hardy, Samuel Thompson and James H. Embree, for usurping the offices of President and Directors of the Alton, Mount Carmel and New Albany Railroad Company.

The opinion of the court recites the facts in the case. The cause was heard at September term, 1854, of the Marion Circuit Court.

The opinion of the court furnishes a statement of the case. The decree complained of was rendered at September term, 1855, of the Monroe Circuit Court.

This was an. action of debt, commenced by Bradford against John T. Jones, executor of Michael Jones, deceased, in the Gallatin Circuit Court, on the 7th of Nov., 1849, upon a note executed by his testator.

This was an action of ejectment brought by the plaintiff in error to recover possession of the east half of lot two in north half of claim 2209, survey 607, in St. Glair county, which by consent of parties was tried by the court, Breese, Judge, presiding, without a jury, at July term, 1854. The plaintiff claimed a fee in the premises.

This cause was submitted to Breese, Judge, without the intervention of a jury, at October term, 1855, of the Randolph Circuit Court, who found for the defendant in error, and gave a judgment in his favor for $475.27 and costs. Whereupon the plaintiff in error brought the record to this court. The facts of the case will be found in the opinion of the court.

This cause was heard by Beeese, Judge, at August term, 1855, of the St. Clair Circuit Court. The statement of the case is made in the opinion of the Court.

<p>ERROR TO MARION.</p> <p>The act for the suppression of intemperance, approved Eebruary 12th, 1855, did not repeal prior laws, providing for the granting of licenses for selling spirituous' liquors, and penalties for selling without such license.</p> <p>No portion of this act was to take effect, until after the people should decide by i vote to adopt it.</p> <p>In construeing a statute, the intention of the legislature will be considered; and to this end the whole act, the law existing prior to its passage, the motive for its passage, and the mischief to be remedied 01; avoided, will be carefully weighed.</p> <p>An indictment which declares the offence to be, the selling “ of one gill of spirituous liquors,” being, &c., less than one quart, is sufficiently certain, under the license laws of this State.</p> <p>An indictment for a violation of the license laws, which concludes “ against the peace and dignity of the people of the State of Blinois,” is within the meaning of the constitution.</p> <p>In cases of misdemeanor, if the defendant waives a jury and puts himself upon the court for trial, he cannot assign for error that the court tried the issue.</p>

<p>ERROR TO MARION.</p> <p>In a prosecution under the act to prevent the immigration of free negroes into this State, it is erroneous to instruct the jury to disregard the statements of the negro, if such were contradictory of his acts, as to his intention to he a resident; both should be considered, giving such weight to each as they might deserve.</p> <p>The affidavit for an arrest under this statute, should aver that the negro has come into the State within the time prohibited; and he has a right to demand the na/ture and cause of the accusation against Mm, and if this does not show an offence against the law he should be discharged.</p>

The opinion of the court furnishes a statement of all the facts necessary to a full understanding of it. The decree in the case was entered by Denning, Judge, at June term, 1850, of the Gallatin Circuit Court.

Driver sued Lucas in the Circuit Court of Jefferson county, averring specially the agreement, as stated in the opinion of the court; the declaration also contained the common counts in assumpsit. The defendant pleaded the general issue and a plea of set-off to this declaration. There was a trial by jury, verdict and judgment for Driver, before Marshall, Judge, at May term, 1854, of the Jefferson Circuit Court. Lucas sued out this writ of error.

This case is stated in the opinion of the court. This cause was heard before Baugh, Judge, at April term, 1855, of the Wayne Circuit Court.

This was a bill in chancery exhibited by the appellant against said Thomas as representative of the Bank of Illinois.

The judgment, complained of in this case, was rendered by Baugh, Judge, at May term, 1855, of the Jefferson Circuit Court. The facts of the case are stated in the opinion of the court.

This case was brought to the Supreme Court by writ of error. At the present term, the defendant in error pleaded that more than five years had elapsed between the rendition of the decree complained of and the suing out of this writ of error, and that the right of the plaintiffs in error to maintain their writ did not accrue within five years next before the issuing thereof.

This application for a mandamus was founded upon a petition to the Honorable I. G. Wilson, Judge of the Thirteenth Judicial Circuit, asking the appointment of commissioners to fix the compensation to be made for appropriating certain lands and lots to the use of the Chicago, Burlington and Quincy Railroad Company, for constructing and maintaining thereon “ turn-outs, depots, engine houses, shops and turn-tables.” The Judge denied the petition, for the following reasons:…

The appellee sued the appellant, in case, for carelessly and negligently killing his horse. Plea, the general issue. On the trial, the appellee examined several witnesses, none of whom were present at the time of the casualty, and gave no direct or conclusive testimony in regard to it.

The facts of this case, as they appear from the pleadings and proofs, are ad follows : In September, 1837, Jesse McKee conveyed for $450, to McConnell, Vansyckel and Ormsbee, a piece of ground in Naples, covenanting that he was seized of an indefeasible estate in fee simple, that he had good right to sell, that it was unencumbered, and to warrant and defend the title. In July, 1839, Ormsbee conveyed his interest in the property to McConnell and Vansyckel.

Browning brought his action in damages against the City of Springfield, alleging that it was the duty of the city to keep a certain street in repair, which duty had been neglected, in consequence thereof he had fallen and. broken his leg. To this action the city interposed a demurrer. The demurrer by consent was sustained by Davis, Judge, presiding, at November term, 1850, of the Sangamon Circuit Court.

A bond for costs was prefixed to the bill in this case, which was filed the 5th of October, 1854, stating that William A. Jennings was prosecuted for larceny in said county, in December, 1852, and was committed to jail because he could not give the bail required of him; that, while in custody, he applied to the appellees for professional advice and assistance; that they applied to the Supreme Ooiu’t, on habeas corpus, and bail was reduced to $500, and that was all the…

At the session of the General Assembly of 1853, an act passed the legislature, for the removal of the seat of justice of Logan county, by a vote of the people. In the fall after, the vote was taken, and resulted in favor of the removal.

Declaration in ejectment by Appellee versus Appellants. Plea, not guilty. September term, 1855: tried before a jury on said issue. Verdict for appellee:—that he is owner in fee of S. E. 10 acres of N. E. S. W. 26, Town. 4 S., R. 3 W., in Pike county, Illinois, part of premises described in declaration; that appellants are guilty of unlawfully, &c. Motion for new trial made, on account of admission of improper testimony, and overruled.

The plaintiff in error was indicted for selling liquor without a license. He was tried at August term, 1854, of the Green Circuit Court, Woodson, Judge, presiding, and found guilty, and fined ten dollars. A motion in arrest, was overruled. The indictment charges that Cannady, not having a legal license to keep a grocery, did then and there unlawfully sell spirituous liquor, to wit: whisky, by a less quantity than one gallon, contrary to the form of the statute, &c.

This application for an habeas corpus was made to the court, in session at Mount Vernon, and the writ, by consent of the petitioner, was made returnable to the court in the second division. The petition stated that Welsh and two others had been convicted, in the Recorder’s Court of the city of Chicago, of larceny, and sentenced to the penitentiary for three years, from the 26th of September, 1855, and that he was now detained under such sentence and judgment.

This was an action of replevin, commenced by Mock vs. Armstrong, in the Circuit Court of Menard county, at the May term thereof, 1855, for one hundred and forty-one head of cattle. The affidavit for the replevin and the declaration are in the usual form of taking and detention, and, to the declaration, the defendant filed several pleas, to-wit: that defendant did not take— that defendant did not detain—property out of plaintiff, and in defendant—property in defendant alone.

This was an application for a peremptory mandamus, founded upon the following agreed case: That at a regular election for city officers, held in the city of Chicago, in the county of Cook, in the… Held: and said votes cast, under the provisions of said act; it being, however, contended that the ballots having been for “ Police Justices,” and not “Police Magistrates”, (the term used in the act), said votes are illegal, and should not be counted.

This was a suit brought originally by the plaintiff in error, before a justice of the peace of Logan county, and taken up by appeal, by the defendant in error, to the Circuit Court of that county, and tried by Davis, Judge, without the intervention of a jury, at April term, 1854, of the Logan Circuit Court.

A scire facias was issued out of the Circuit Court of Madison county, Illinois, on the 23rd day of August, 1855, setting forth, that, on the 12th day of March, A. D. 1855, Thos.

This was an action of assumpsit brought by Rives against Martin and Booth. Plea, non-assumpsit. Jury waived. Trial by the court, Hablan, Judge, presiding, at October term, 1858, of the Edgar Circuit Court. On the trial the plaintiff proved by Robert M. Rhae that from the first of June to the first of September, 1847, plaintiff was absent from home.

<p>APPEAL EROM MACOUPIN.</p> <p>In an action for corn sold and delivered, it is lor the jury to determine from the evidence the quantity sold, and the plaintiff need not necessarily prove the exact quantity delivered.</p> <p>The competency of evidence is for the court to decide, and the jury will pass upon ’it according to its weight and preponderance when it has been submitted to them. .</p>

These were actions of assumpsit on promissory notes. The sole defence goes to the consideration of the notes.

This was an action of assumpsit on a'promissory note. The sole defence goes to the consideration of the note. It is presented by two pleas: 1st. That the note was given for an interest for a supposed patent for an “ Horological Cradlewhereas there was no patent, but only a patent for an “ornamental design” for an horological cradle. 2nd.

The actions in this case are precisely similar in pleadings and proofs, both being in covenant on a deed, by which the parties covenanted, “ that they, their heirs, executors and administrators will warrant and defend the title to the said premises (conveyed) to the vendee, his heirs and assigns forever, against the claim of all and any person or persons whatsoever.” The cases were submitted to Woodson, Judge, of the Morgan Circuit Court, without the intervention of jury;…

Dickson, the appellant, in January, 1853, was appointed by the Governor and Senate of Illinois, director for the Illinois Institution for the Education of the Deaf and Dumb, and entered upon the duties of said appointment.

<p>This cause was heard before Woodson, Judge. The opinion of the court gives a statement of the case.</p>

The defendant in error entered into a recognizance with one Bennet for the appearance of the latter to answer to a criminal charge. The recognizance was forfeited, and a scire facias issued against Bennet.

Action of assumpsit, commenced by the defendant in error against Davis, the plaintiff in error, and one Wm. Pankey. The declaration contains two counts, and commences, Isaac Scarritt, plaintiff in this suit, complains of William Pankey and Thomas Davis, late partners, trading and doing business under the name, style and firm of Pankey & Davis, defendants.

This was an action of trespass, for shooting a mare, of which shooting she died. The declaration is in the usual form, and a plea of general issue, and change of venue from Madison county to Jersey county for trial. Upon the trial of the suit before a jury, the plaintiff below introduced evidence tending to prove the defendant guilty of the trespass as alleged.

This was an application to the Circuit Court of Sangamon county, to make one Thomas G. Taylor a party to a judgment, in the case of Josiah Francis, sheriff of Sangamon county, for the use of Charles R. Pierce, against William Loomis and the said Thomas G. Taylor, entered at August term, 1851, of the said court, so that the judgment should be against both, &c. This application was founded upon the affidavit of Pierce, stating that his attorney in the suit against Loomis and…

This was an action of forcible entry and detainer, commenced by the plaintiff in error before a justice of the peace, in Pulton county, against the defendants in error, where there was a trial by jury, who found a verdict of not guilty. On this verdict there was a judgment for costs against the plaintiff, from which he appealed to the Circuit Court.

On the 30th August, 1836, the appellee, A. Brockenborough, and J. McKinney, made their note at one year’s date to John T. J ones, then school commissioner and agent for the inhabitants of said county for the use of the inhabitants of T. 16 E., R. 9 W., for $50, and a judgment was rendered by the Circuit Court of said county against the makers of said note, at the suit of said Jones, as school commissioner, on the 28th June, 1839, for debt, damages and costs.

Ruffner states, in his bill, that, for value received of Fielder, as general agent of Kanawa Salt Company, on 29th Aug., 1842, for consideration of $400, a deed was executed and acknowledged, on same day, at Naples, by Vansyckel and wife, and Mc-Connel and wife, two days afterwards at Jacksonville, to Fielder, for a tract of land in Scott county; Vansyckel and McConnel and wives “ covenanting that their heirs, executors and administrators will warrant and defend title to…

<p>APPEAL PROM MACOUPIN.</p> <p>To disqualify a deputy sheriff from serving an execution, either he or his principal must have been plaintiff in the action, entitled to the money to be made by a sale under it, or have a direct interest in the process.</p> <p>Where a third person, after execution issued, pays off a mortgage given by the judgment debtor, and takes possession of the goods and sells them, they will still be subject to the execution. The satisfaction of the mortgage by the third party did not invest him with any interest in the mortgage debt or the mortgaged property.</p>

This suit was commenced in the Fulton Circuit Court, by attachment, to recover $1,758.23, the price of sixty-two head of beef cattle. Declaration in assumpsit, containing the common counts. On the return of the attachment, the defendant below, (appellant in this court) appeared and plead the general issue.

The opinion of the court embodies a statement of the case. The proceedings complained of were had before Woodson, Judge.

At the September term of Pike Circuit Court, 1855, Hitchcock, the owner of certain real estate in Beardstown, Cass county, Illinois, levied upon and sold under an execution issued from the Pike Circuit Court, in the case of People vs. Roney, entered a motion and filed his reasons to set aside the levy and sale in said real estate, and quash the execution therein. The motion was continued for the purpose of notice to Lewis F. Saunders, the purchaser under said execution.

<p>ERROR TO MORGAN.</p> <p>Where a bill of exceptions does not show what the question propounded to a witness was, it is difficult for this court to say that the Circuit Court erred in refusing to permit the witness to answer it.</p>

The defendants in error presented a claim for allowance against the estate of Matthew Mitchell, deceased, in the County Court of Fulton county, which was objected to by the plaintiff in error, and upon a trial the County Court found against the claimants, and rendered judgment for costs. From this judgment the defendants in error attempted to take an appeal to the Circuit Court.

This cause was tried by the Circuit Court of Madison county, Underwood, Judge, presiding, without the intervention of a jury, and judgment was rendered for the defendant in error.

This was an action of trover, commenced by the defendants in error, against the plaintiff in error, in the Pulton Circuit Court, to recover damages for the conversion of certain lots of corn,oats, wheat, &c. The defendants filed four pleas, to-wit: 1st. That he was a deputy sheriff of Pulton county, and as such, he received six several writs of attachment, set out in the plea, against one Abraham Stevenson, issued from Fulton county, by virtue of which he levied upon and…

This was an agreed case, certified by the clerk of the Circuit Court of Scott county, submitting certain questions, under the statute of limitations, to this court for its consideration and decision. The case was designed to come within the provisions of the seventeenth section of the twenty-ninth chapter of the Revised Statutes of 1845, entitled “ Courts.” The case of JDickerson v. Sprague was certified from the Cass Circuit Court, under the same circumstances.

On the 23rd day of November, 1853, Thomas Green and Ellery M. Merris, filed their bill in chancery with reference to a plat prefixed, alleging their ownership and occupancy of certain lands, and that they were deeply interested in the uninterrupted and undisputed use of a public highway, indicated by said plat, running east and west, “ that had been used by the public for upwards of twenty years,” and that Oakes had avowed his purpose to obstruct the same, by fences and…

The scire facias, issued herein, simply recites the order of the Circuit Court, stating that Shadley did not answer, ordering that his recognizance before the justice be declared forfeited, and that a scire facias issue, and then calls upon the defendants named to answer. The defendants were served, but made default, and judgment went against them for the amount of the recognizance. Judgment rendered at October term, 1854, of the Clark Circuit Court.

This cause was heard by Woodson, Judge, by consent, without the intervention of a jury, who decided that Street and the others had, and that McConnel had not, a good title to the lot of land in question, and rendered judgment accordingly. The opinion of the court sets out the facts in the case.

<p>ERROR TO BROWN.</p> <p>Where, upon a proceeding by town authorities, to condemn lands for opening streets, they describe said land in all their proceedings, as being the land of A., they cannot afterwards deny his right to be heard on the question of damages, upon the ground of his want of title.</p>

Whiteside and Eaton employed Tunstall to set up á steam engine, which if he did not successfully accomplish, he was not to have any other consideration than his board and horse keeping.

<p>APPEAL PROM MADISON.</p> <p>If a court has jurisdiction of the subject matter, however erroneous a decree or judgment may be, it can only be avoided by a direct proceeding for that purpose, and cannot be attacked for error in another and independent proceeding.</p> <p>Although equity may grant relief by a strict foreclosure, the practice should not be encouraged.</p> <p>The right of redemption continues until barred by lapse of time, by strict foreclosure, or by judicial sale. But such right of redemption ceases after a sale under a decree to pay the debt.</p> <p>A suit at law to coerce payment of a balance remaining due, after applying the proceeds of the sale, does not open the sale and entitle the mortgagor to redeem, except within the time limited by the statute.</p> <p>If a decree directs the sale of land subject to an incumbrance for notes not then due, the purchaser takes the land subject to the incumbrance, and cannot sue to recover the amount of the notes; they are paid by operation of law.</p> <p>If the mortgagee acquires the fee in the land, the debt is merged in the land; and unless some contrary intention is manifest, the debt is extinct.</p>

Tms is a suit in chancery, and the facts, as proven, are as follows: Complainant, Jones, became indebted to James Gillham, and gave his note, and Marshal Smith signed his note, as security. He also became indebted to Abijah Eelton, and gave his note, and said Smith signed with him, as security. Jones and Smith were sued upon these notes, and two judgments were rendered, and executions were issued, and levied upon three tracts of land belonging to Jones.

<p>APPEAL FROM JERSEY.</p> <p>Where courts of equity have concurrent jurisdiction with courts of law, and the party proceeds in equity, if barred at law he will also be barred in equity.</p> <p>Although the statute of limitations may not in terms apply to courts of equity, yet by analogy equity will act upon the statute and will refuse relief where the bar is complete at law.</p> <p>A mortgage became forfeited in 1837; an undivided portion of the mortgaged lands, conveyed prior but recorded subsequent to the mortgage, which were soon after partitioned between the mortgagor and his vendee; the parties who subsequent to the partition acquired from the vendee of the mortgagor and held the land in actual possession over seven years and paid taxes, were held to be protected under the statute of limitations against the application by bill of the mortgagee to foreclose his mortgage. The possession under paper title and payment of taxes for seven years being a bar to equity relief against [the lands so held under the mortgagor.</p>

On the 29th of August, 1853, intestate filed his bill stating that he, Thompson, and Dutch, were partners in a California enterprise, for some five months in 1850; that Thompson and Dutch had adjusted their accounts, but that he had not adjusted his accounts with them; that on a proper and fair adjustment of the partnership account, Thompson was justly indebted to intestate about one-third of $1050, which he refused to adjust; that as between intestate and Dutch, nothing was…

This was an action of assumpsit brought by appellants against appellee, for goods sold, &c. Plea, general issue, trial by jury, verdict for appellee, and judgment for costs against appellants-. Woodson, Judge, presided, at the trial in Morgan Circuit Court, at October term, 1855.

<p>ERROR TO FULTON.</p> <p>In serving process by copy, the return of the officer must show a strict compliance with the statute, or the court will not obtain jurisdiction of the person.</p> <p>No default should be taken against infants, in a petition for partition; a guardian ad litem should be appointed for them before any stops are taken, wherein they are entitled to be heard.</p> <p>A default should not be taken upon publication, without a return of summons “ not found.”</p> <p>A decree of partition should not be rendered against infants without proof of the case made by the bill; which proof should be preserved in the record.</p> <p>Where land descends to the wife, it should, on partition, be set off to the husband and wife in right of the wife, or to her alone, not to them jointly and in fee.</p>

This cause was submitted to Skinner, Judge, of the Adams Circuit Court, without the intervention of jury, at April term, 1854, of said court. The court found that the bond mentioned in the declaration was the act and deed of the defendants, and that the breaches in the declaration were well- assigned, and gave judgment for plaintiffs. Defendants below appealed.

This was a bill iu chancery filed in the Tazewell Circuit Court, 15th March, 1852, by Reuben Hatch against John Preston and John Weightman, to set aside a deed made by Preston to Weight-man of certain lands situate in said county, which was alleged by complainant to be fraudulent and void, as against the creditors of Preston.

This was an action of ejectment for several tracts of land, commenced in the county of Menard, by the heirs of David Batterton, deceased, against William Yoakum, and tried at the October term of the Menard County Court, A. D. 1855. The plaintiffs and defendant waived a jury, and the case was tried by the court.

This is a suit in chancery, from McLean county, to enjoin the collection of a tax, assessed by the county assessor of McLean county, upon the money and property of the Illinois Central Railroad Company. It comes to this court by appeal from a decree of dismissal, entered pro forma.

<p>ERROR TO MADISON.</p> <p>A mechanic’s lien, as created by the statute, is not upon the specific thing furnished, nor upon the interest alone of the party in the land, for whom famished, but against the land, to be satisfied in any way consistent with the statute and the principles of equity.</p> <p>Generally, although all the materials furnished, upon which the lien accrues, are destroyed or removed, the lien still continues against the land.</p> <p>In a proceeding, under this lien, against a party in possession, though he should not be the owner, the land may be sold, and the purchaser will take the title as against him; and whatever interest he had in the land will vest in the purchaser.</p> <p>Persons not parties to the proceeding will not be affected by it.</p> <p>If the work done, or the materials furnished, is so furnished or done upon distinct premises, the lien must be against each of the several premises, according to the value of work and materials, and not against both for the aggregate amount.</p> <p>The lien does not follow the materials furnished, from place to place, but is upon the. land; severed from the land, they become personal property until again united or merged in the land.</p>

The only questions raised upon this record are fully presented in the opinion of the court, and render any other statement of the ca.se unnecessary.

The judgment in this case was rendered by J. M. Wilson, Judge, at vacation term of the Cook County Court of Common Pleas, in January, 1855.

It appears by the bill for an injunction filed in the case of Rose, that Whittemore, his grantor, purchased of Daniel Clough, the son of David Clough, who had been a soldier in the war of 1812, all the right whichyhe had to any land that might be granted to said David Clough, for services in said war; and that Mary Clough, a daughter of said David, (Daniel and Mary being the only children and sole heirs of David,) gave him a power of attorney, to procure the warrant for the…

The action below, was replevin. The declaration contains one count, charging that the defendants took from the plaintiff several articles connected with a telegraph office, and all the polls and wires in the county of Cook, and attached to the office, known as the Southern Michigan Telegraph Company, in the city of Chicago, of which the plaintiff was entitled to the possession. To this action the defendants filed two pleas. 1st plea, that they did not take the said property.

The plaintiffs below brought this action, which is assumpsit, against the defendant as the acceptor of five several bills of exchange. The declaration contains five special counts, and the common counts with copies of the bills set out.

The defendants were indicted for larceny, tried and convicted, at September term, 1855, before R. S. Wilson, in the Recorder’s Court of the city of Chicago. They were sentenced to three years’ confinement in the penitentiary. The accused, were practising upon Hall, what is known as the ball and safe game, and borrowed of him the money, to wager. Hall was the principal witness on the trial.

This was an action of ejectment, brought in the Cook County Court of Common Pleas, by the appellant, against the appellee, to recover the possession of a part of the west half of the northeast quarter of section eighteen, in township thirty-nine north, range fourteen east of the third principal meridian. The declaration was in the usual form under the statute of ejectments, particularly describing the premises, and claiming the same in fee.

This was a bill filed in the Circuit Court of Stephenson county, in August, 1853, by Jacob S. Brillhart, complainant, against Joseph A. McConnell, to compel a specific performance.

This was an action of trespass, quare clausam. First plea, general issue. Second plea, public highway and supposed trespass within its limits. First replication to second plea, no highway. Second replication to second plea, trespass not in the highway. Issue found for plaintiff. Motion for new trial overruled, and judgment. Plaintiff’s title to the close, and that the defendant took down the fence and drove across it from north-east to south-west, was proved.

This suit was originally commenced before a justice of the peace in Kane county, by the defendant in error against the plaintiff in error, and judgment entered in favor of the defendant in error for $88.46, from which an appeal was taken to the Circuit Court of said Kane county. The venue was changed to DeKalb county.

At the January term of the Recorder’s Court, of the city of Chicago, 1856, R. S. Wilson presiding, the following indictment was found: The grand jurors chosen, selected and sworn, in and for the city of Chicago, of the county of Cook, in the State of Hlinois, in the name and by the authority of the people of the State of Illinois, upon their oaths, present, that Elijah Bowers, late of said city, on the twenty-first day of December, in the year of our Lord one thousand eight…

This was an action of assumpsit brought to the Cook county Court of Common Pleas; to which the defendant pleaded nonassumpsit, supported by affidavit of merits, stating that the party who made it, was defendant in the suit, “ and that he has a defence therein on the merits.” . ' On motion of counsel for plaintiff, the plea and affidavit were struck from the files, because of the insufficiency of the affidavit to the defence on the merits. To which the defendant excepted.

This was a suit brought by the appellees against the appellant, on 17th day of December, 1853, before a justice of the peace, to recover certain penalties for the alleged violation of alleged ordinances of the town of Aurora—for selling liquor— and brought by appeal and change of venue to the Circuit Court of Kendall county, and tried at September term, 1855, before Hollister, Judge, and a jury. Judgment of $100 against appellant.

The opinion of the court gives a statement of the facts. Judgment by Manniere, Judge, upon the verdict of a jury, at November term, 1855.

This was an action of assumpsit, brought by the defendants in error, and returned to the Cook County Court of Common Pleas, at vacation term for June, 1854. The declaration was filed on the 17th of May preceding.

This was a suit brought on account for damages as laid in declaration, for $5,000. Declaration contained the common counts, by said plaintiffs in error against defendant in error.

This was au action of assumpsit brought by the appellees against appellant upon the common counts. The appellant pleaded, that it never promised as alleged, and payment. There was a trial by jury, and verdict and judgment for appellees for $226, before Hollister, Judge, at November term, 1855, of the LaSalle Circuit. Court.

This was an action of trespass quare clausum fregit, brought to the LaSalle County Court. Pleas: not guilty; public highway. Replications : similiter to first plea, and a traverse of the second plea.

These were actions in debt, to which the defendants below filed to each the general issue and four special pleas. There were four replications to the second plea, but no notice appears to have been taken of any of the others. The parties submitted the cases to the court, Kellogg, Judge, presiding, without the intervention of a jury. There was a finding and judgment in both cases for the plaintiffs below. The defendant below appealed.

This was a motion for a new trial, made by Laflin, on the 22nd day of March, 1856, which was overruled and denied.

On the 1st day of December, 1853, plaintiffs issued out an attachment against MacLean, from Peoria Circuit Court, which was levied on the steamboat “ Kentucky,” as the property of MacLean.

This was an action on the case by the appellee against the appellants.

This case was submitted upon the following agreed state of facts: This was an action of trover for a horse and a cutter, stolen by a third party, and purchased by the defendants of the supposed thief.

Copy of indictment: “ Of the September term of the Peoria County Circuit Court in the year of our Lord 1853. “ The grand jurors chosen, selected and sworn, in and for the county of Peoria aforesaid, in the name and by the authority of the people of the State of Illinois, on their oaths, present, that Samuel Dimon, late of the county of Peoria aforesaid, on the thirteenth day of June, in the year of our Lord one thousand eight hundred and fifty-three, at and within the county…

This was an action in ejectment, brought by Williams against the defendant, Chapman. On the trial, Williams declared his title through the grantee from the government in 1843, by virtue of the foreclosure of a mortgage and sale under it, by deed dated March 27th, 1854. The mortgage under which he derived title was dated September 21st, 1844, filed for record for the 25th of November following. Judgment of foreclosure of mortgage was on September 11th, 1852.

This cause was tried before Randall, Judge, and a jury, at December term, 1855, of the Will Circuit Court. The plaintiff in error was found guilty, and his punishment fixed at four years in the penitentiary.

This is an action of assumpsit, brought by plaintiff against defendant upon a subscription of said defendant to said plaintiff for stock in said company. Declaration recites: 1st. The act of the Elinois legislature, approved 12th February, 1849, entitled “ An act to incorporate the Peoria and Oquawka Railroad Company,” and the amendatory act passed and approved February 10th, 1851. 2nd.

This case is a suit in chancery, brought by Johnson against Dodge, for the specific performance of a contract for the sale of forty acres of land, more or less.

This was an action of assumpsit, commenced by Isaac Cook, late sheriff of Cook county, against the plaintiffs in error, in the Lake County Circuit Court, by attachment, and afterwards removed to the Cook County Court of Common Pleas, and tried before J. M. Wilson, Judge, at the September term, 1855.

This was an action in debt, on a promissory note, dated 3rd January, 1844, Bethel, in the State of New York, for ninety dollars, payable to John Barlow or bearer.

This was an action of assumpsit, begun August 24th, 1854, by Stateler against Holmes, in the Marshall Circuit Court. Plea of non-assumpsit filed October 20,1854. The case was tried in October, 1855, before Hollister, Judge, and a jury.

This suit was commenced at October term, 1853, being an action of assumpsit; damages claimed, $300. The declaration in the first count was for grubbing and piling the brush on fifty acres of land in said county, and for cleaning done thereon by the said plaintiff for the said defendant, and at his special instance and request; and defendant promised to pay, &c.; second count, general account for work and labor. Plea, general issue.

This judgment was rendered by J. M. Wilson, Judge, without the intervention of a jury, at February term, 1856, of the Common Pleas Court. , The plaintiff, in the first count in his declaration, declares upon a promissory note, alleged to have been made by one Henry Fowler, bearing date October 10th, 1852, and alleges that the said Henry Fowler, thereby, three years after the date of said note, for value received, promised to pay one Thomas A. Stewart, or order, ten hundred…

Randall filed his bill in the McLean Circuit Court, stating that Stacey was indebted to him in the sum of $1,000 with interest ; to secure which he gave a mortgage upon the property and estate that had been given to him by his father, Stimpson Stacey, however or wherever said property or any part of it may be found ; to be discharged by the payment of $1,000, in two years from the day of the date of the mortgage, which was on the 9th of February, 1847.

The proceedings in this case were had before J. M. Wilson, Judge, of the Common Pleas Court. The facts are stated in the opinion.

This was an action of assumpsit. A demurrer to the declaration was filed and overruled. The defendant then obtained time to plead; The other proceedings are stated in the opinion. Judgment was rendered for plaintiff in the court below, by J. M. Wilson, Judge, at the March special term, 1856.

This was an action of assumpsit upon a promissory note. Plea, non-assumpsit, and similiter. The plaintiff below offered in evidence a promissory note, signed by defendant. The defendant then offered evidence to show a failure of the consideration, for which the note offered in evidence was given. This evidence was excluded by the court. To the exclusion of which evidence, the defendant below excepted, and assigns its exclusion for error.

This bill for a divorce was heard before Sheldon, Judge, at September term, 1855, of the Stephenson Circuit Court, and dismissed. The facts are stated in the opinion.

The declaration was as follows : That on the 28th of April, 1854, differences arose and depended between plaintiffs, defendants and John P. Chapin, touching a certain contract for sale of '30,000 bushels of corn, by Harmon & Huntoon to Haywood & Giroux, made about 27th August, 1853, and guaranteed by said Chapin.

This is an action of debt, on a judgment of the Superior Court of the city of New York, rendered January 14th, 1842, in favor of the plaintiff in error, for $6,087.34, against the defendants, Smith and Hull, under the New York “ Joint Debtor Act” of 1830.

This cause was heard before J. M. Wilson, Judge, of the Common Pleas, at March term, 1856. Judgment was rendered for the defendants. The opinion of the court furnishes a statement of the case.

This cause was tried before Sheldon, Judge, at May term, 1854, of the Jo Daviess Circuit Court.

This was an action of assumpsit brought to the Kane Circuit Court and tried before I. G. Wilson, Judge, at February term, 1855. The court found for the defendant on the issues joined.

At the September term, 1853, of the Circuit Court of Peoria county, the plaintiff, McClellan, filed his declaration in ejectment against said defendant, Kellogg, for the W. half S. W. qr. of Sec. 36, T. 10 N., R. 5 E., in said Peoria county. On the 16th day of September, 1853, the defendant appeared and filed the general issue.

The facts of this case are stated in the opinion of the court. This cause was heard before Gale, Judge, and a jury, at May term, 1856. Verdict and judgment for appellee.

This was an action of trespass on the case by Yarwood against the appellant, for personal injuries.

This was a bill in chancery, filed February 17,1854, in the Cook County Court of Common Pleas, by the appellees against the appellant, praying for a decree, declaring the defendant to be a trustee of the complainants of block 57, Canal Trustees subdivision of Sec. 7, T. 39 N., R. 14 E., and for a conveyance, &c. It appeared that on or about the 7th of November, 1848, the defendant purchased the above block for $1,500 ; $500 of which was paid by a conveyance of 80 acres of…

This action was brought upon a bond given to the sheriff of Cook county, showing that an attachment had been issued and served by the sheriff at the instance of appellees against one Pierre Bourlier, on divers articles of merchandize which Bourlier was desirous of retaining, conditioned that Bourlier should pay the amount of the judgment and costs, which might be rendered against him in the suit of the Hoyts. This bond was assigned to the appellees.

This was an action in assumpsit by plaintiff in error against defendant in error, on a promissory note payable by him to said plaintiff.

This action was brought in the Cook county Court of Common Pleas, to recover damages for backwater, resulting from a dam erected in Will county for the purpose of feeding the Illinois and Michigan canal with the water of Calumet river. The land injured is alleged to be in Lake county, Indiana, and was the property of Mary Eachus, the mother of this plaintiff, who claims damages as her heir at law.

The facts of this case are stated in the opinion of the court. This cause was heard before Leland, Judge, at October term, 1853, of the Marshall Circuit Court.

plaintiff was possessed of an ox of the value of $100, which ox was then and there lawfully running at large, and the defendant was then and there possessed of a certain railroad, which was uninclosed, and of a steam engine and train of cars then running on said road, and the defendant so carelessly, negligently, unskillfully and improperly drove, governed and directed said engine and cars that, by the carelessness, negligence, unskillfulness and improper conduct of the…

This was an agreed case in the Circuit Court of Cook county. That, court, as appears from the case, adjudged in favor of the plaintiffs below, rendering judgment against the defendant for damages and costs” not naming any sum. This decision upon the agreed case is presented to the Supreme Court.

This was an action of trespass quare clauswm, fregit in the Bureau Circuit Court, by appellee against appellants. The declaration contains one count, in the usual form. Plea, that the locus in quo was a public highway. Replication to second plea, that a highway had been located over the close in question, but damages not assessed and paid to appellee, who was the owner of said close, etc. Demurrer to this replication, which was sustained, and leave given to appellee to amend.

This was an action of assumpsit, brought by the appellee against the appellant in the Lake County Court, said County Court having jurisdiction of the subject matter, by virtue of an act of the General Assembly of this State, entitled “ An act to extend the jurisdiction of the County Court of Lake County,” approved February 12th, 1853. Declaration upon a promissory note given by appellant to appellee, and the common counts.

The scire facias, in this case, recites that appellant and' one J. Fittsher came before S. G. Paddock, sheriff of said county— Fittsher having been arrested upon a capias issued from the Circuit Court, for the crime of larceny—and the said Waugh and Fittsher executed and delivered to said sheriff, a bond or recognizance, whereby they severally acknowledged themselves to owe and be indebted to the people of the State of Illinois, the sum of two hundred dollars each, to be…

This was an action of debt. The declaration is as follows: For that whereas on the 19th day of April, A. D. 1850, the defendants made their certain bond or writing obligatory in the sum of five thousand dollars, lawful money, to be paid to George Smith A Co.,—the condition of said bond being such, that if the said Thomas Hamilton Noble (one of the appellants herein,) should well and truly perform the duties assigned to, and trust reposed in, him as teller of said firm, and…

This was an action brought by Michael Geiselman in the Cook county Court of Common Fleas, against Bradley, for an alleged trespass in seizing certain personal property. The plaintiff claimed the property in the declaration mentioned by a sale made to him by Elisha W. King and Henry A. Layton, doing business under the firm of H. A. Layton & Co. The defendant pleaded the general issue, with notices. The case was taken by change of venue to Kane county.

This is an action of debt upon a judgment of the Supreme Court of the State of New York, commenced in the Cook county Court of Common Pleas. The declaration alleges that William Hulbert and La Fayette Hulbert, plaintiffs, by their attorneys, complain of Nelson C. Rae, defendant in this suit, of a plea of debt, that he render to the said plaintiffs the sum of twelve thousand dollars, which he owes to and unjustly detains from the said plaintiffs.

This was an action of trespass begun before a justice of the peace, for killing a steer, by the train of the defendant, running upon the railroad in LaSalle county. Judgment was rendered for the plaintiff below, for twenty-five dollars and costs. The case was taken by appeal to the LaSalle County Court. The case was submitted to H. G-. Cotton, Judge, of the County Court, without the intervention of a jury, who gave judgment for Reedy for thirty dollars and costs.

This was a bill in chancery filed by appellee against the appellants in the Circuit Court of Lake county, setting forth that on or about the 28th day of November, A. D. 1842, Burleigh Hunt purchased of Lake county lots 4, 9, the north half of 5 and the north half of 8, all in block 25, in the town of Waukegan, as marked and designated on the plat of the town made by the county commissioners; that Burleigh Hunt paid said county $45, or thereabouts, for said real estate, and…

This was a transcript filed in the Kane Circuit Court, by which it appeared that judgment had been obtained against the corporation as garnishee. On the filing of the transcript from the justice in the Circuit Court, additional interrogatories were propounded to the garnishee. The case was submitted to a jury by I. G. Wilson, Judge, at July term, 1855, who found for the corporation. An appeal was prayed by Oliver to this court.

This was an action of assumpsit by Rawson against Hough, begun in the LaSalle Circuit Court.

This was an action brought on a promissory note against the plaintiff in error as indorser. The note sy.ed for was as follows : “$300. St. Louis, Rot. 26, 1852. Eight months after date I promise to pay to the order of Geo, C. Bestor three hundred dollars, value received, payable at the office of Phelps & Bourland, Peoria, Hlinois, H. A. POSTER.” Indorsed, “ Pay Phelps & Bourland, Geo.

This was an action of assumpsit, brought by the defendants in error against the plaintiff in error, to the March term, 1856, of the Cook Circuit Court. The declaration contains two counts.

The declaration is in case for slander, and comprises two counts. The first count states that in a colloquium on 16th May, 1855, with the defendant, in the hearing of one Stephen Lamb and others, the plaintiff falsely and maliciously spoke and published of and concerning the defendant, the false, scandalous, malicious and defamatory words following, that is to say: “You,” meaning the said defendant, “stole the timber to build the Alison bridge.

On the 12th June, 1838, James Whitlock was indebted to Taylor, Breese & Payne, $3,537.65, for merchandize sold him in 1836, for which he gave his notes and a mortgage on certain real estate, payable in one and two years, with six per cent., bearing date on the said 12th June, 1838, which debt and notes are recited in the mortgage as due and unpaid.